‘Constantly battling isn’t healthy for lawyers, government or clients’

A former legal aid lawyer turned policy wonk, for the past 16 years, Richard Miller has watched one ill-judged attempt to reform the scheme after another unravel. Below, he sets out the insights that this unique ringside seat has given him.

I became director of the Legal Aid Practitioners Group in April 2000, and have been working full time on the political side of legal aid ever since, joining the Law Society in August 2007. The past 16 years have been tough times for legal aid, and the relationship between the profession and the Ministry of Justice has frequently been confrontational.

Constantly battling is not healthy for lawyers, for government, or for clients. We have a common aim in wanting to see an efficient justice system, in which lawyers can play the role required of them to ensure that the rule of law is maintained, and that everyone can secure justice, in as cost-effective manner as possible.

Why do lawyers and the government so often find themselves at loggerheads over legal aid? What lessons can be learnt from the past 16 years to develop a more constructive working relationship in the future?

1. Cutting fees means cutting service provision
That includes cutting by merely not increasing fees in line with inflation.

The Government often looks at international comparisons. Legal aid rates are lower in this country than in comparable jurisdictions. The budget is higher because there are more cases, and/or because lawyers have to do more on each case.

In the short term, firms respond to fee cuts by reducing client service and cutting the salaries they pay lawyers. In the medium term, fewer lawyers will undertake this work. In the long term, firms pull out altogether. We are already well into step three.

There is now ample evidence that fee rates are so uneconomic that the supplier base is at serious risk. On the crime side, the reports from PA Consulting, Otterburn, Frontier and KPMG were consistent in demonstrating that a large number of firms are teetering on the brink of commercial viability.

On the civil side, the number of firms that have pulled out of legal aid since the last tender round in 2013 raises significant doubts as to whether the work remains viable.

This is why in our access to justice campaign, we have called on the government to commission an independent review into the sustainability of the legal aid system

2. Lawyers offer an informed view of the system
Over the years, we have regularly responded to consultations, offering the government the benefit of our understanding of the system to set out the risks and problems with its proposals. Sadly, the government has often disregarded our concerns on the grounds that it is lawyers’ self-interest speaking, only for those concerns to be proved justified later on.

Lawyers highlighted the potential problems that would be caused by the concept of ‘matter starts’ to limit the number of cases a firm could undertake under a civil contract. The problems were then aired in a judicial review brought by Mackintosh Duncan. Despite significant criticism from the court, the problems were not properly addressed. We ended up with the bizarre situation where a client wanted to instruct a firm; the firm wanted to take the matter on; it was something they were qualified to do; but the Legal Services Commission said the firm had to send the client to their less successful competitor firm – and this at a time when firms were being told they had to be much more commercial in their approach. The LSC’s successor, the Legal Aid Agency is now taking a more pragmatic approach, but the potential remains for these problems to recur.

When the government proposed a public defender service, it rejected arguments from lawyers that it would prove more expensive than private practice. Research subsequently showed that the PDS cost between 40 per cent and 90 per cent more than private practice.

Community Legal Service Partnerships, in which suppliers and funders got together to map need and come up with ideas for addressing it, were a good idea on paper, but they would require co-operation from local authorities. As predicted, many local authorities were not interested, and CLSPs duly faded away, but only after significant resources had been expended on them.

Then of course there have been the various proposals for tendering schemes, which the profession repeatedly warned the government would not work, of which more below.

3. Know your market
Sometimes, even when the government tries to do the right thing, it gets it wrong because it does not consult the profession and take on board its feedback.

While the 2005 price competitive tendering proposals were deeply misguided, the LSC tried to assist the profession by offering free management consultancy. This backfired when the management consultants explained to a room full of criminal lawyers how, if their firm did not manage to get a contract for criminal defence services, there were other contracts they could bid for in connection with the development work for the Olympics going on in East London at the time. I don’t think anyone in that room took seriously a single word they said after that.

Community Legal Advice Centres and Networks were a good-faith response to growing evidence that people with social welfare issues rarely have just one problem. They often have clusters of problems. But this initiative tended to ignore the “ecology of provision” that had grown up to serve local communities. A number of good local community groups were wiped out by CLACs, and were sorely missed when CLACs themselves were wiped out by LASPO.

On the subject of LASPO, when the cuts to civil legal aid were proposed, the MoJ thought that the not-for-profit sector would pick up the slack. Those who know the market knew that not-for-profit agencies would be affected by the LASPO cuts, and cuts to their other sources of funding, and would thus be shrinking, not growing.

Similarly, the idea that referrals to mediation would increase when you took out of the equation your biggest source of referrals to mediation was misguided. Had the MoJ understood the market better, the massive increase in litigants in person in family cases might have been avoided.

4. Procurement processes should be done by consent
Governments have made several attempts to impose procurement processes on the profession which the profession very strongly opposed. Tender processes are notoriously difficult to make litigation-proof. If you introduce a tendering scheme that looks as if it will damage services that vulnerable people need and put the lawyers who want to help them out of business, legal challenges are almost inevitable. But if you work with your supplier base, they can be largely avoided.

The government has now tried and failed three times in 10 years to introduce competitive tendering for criminal contracts. This market is fundamentally unsuited to competitive tendering. The MoJ is a monopoly purchaser, and the lawyers concerned cannot easily transfer to other careers. This distorts the market so much that what on paper are normal tendering approaches cannot work.

The 2005 proposal for price competitive tendering in London collapsed under the weight of its own inherent contradictions.

In 2009-10, a reverse Dutch auction system was proposed. The profession hated it, and we thought that it would not work. We raised a large number of questions which the LSC failed to answer, until, only three weeks before the pilot was due to go ahead, they pulled the plug.

We all know what happened over 2012-2015.

But the current tender has not generated any big systemic complaints.

On the civil side, both the 2007 and 2010 tender rounds were subject to successful judicial reviews. In 2007, the LSC wanted firms to accept a contract that expressly said that nobody knew how they would be paid after the first six months, or at what rates. This uncertainty put the tender in breach of EU procurement rules. In 2010, a process that the LSC thought, against our arguments, would enable most firms that wanted a contract to get one, ended up denying a contract to around half of them. It was doubtful that the remaining firms could have expanded sufficiently, which would have led to substantial geographical gaps in the market. The legal challenge was successful, albeit on the peripheral point that firms had not been given sufficient notice to demonstrate that they met a particular quality requirement.

Conversely, the tender processes since 2012 have been conducted on a more consensual basis. While there have been individual challenges, there have been no further systemic challenges.

5. The key to controlling the legal aid budget is improving the efficiency of the justice system
Over the past 20 years, there have been numerous reports on inefficiencies in the justice system and how they can be tackled.

Much of the cost is down to the court processes. The same issues that make legal services unaffordable for many privately-paying clients also contribute to the upward pressures on the legal aid budget.

The courts and tribunal service reform programme is a rare chance for us all to work together to transform the system into an efficient machine that is fit for the 21st century. It is going to take constructive joint working with goodwill on all sides to get the maximum benefit out of this programme. If the government and lawyers end up in a confrontational situation again, it is not going to work. If lawyers feel that they are valued, and that their contributions are being accepted in the co-operative spirit in which they are offered, great progress can be made, to everyone’s benefit.

About Richard Miller

Richard is head of legal aid at the Law Society. He was previously director of the Legal Aid Practitioners Group

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